D-134 - Adjudication Board Decision

The subject member (Respondent) brought home two RCMP service pistols and permitted his eight year-old daughter and seven year-old nephew to handle the unloaded pistols. He also used his RCMP Blackberry to take photographs of the children handling the firearms in various poses. The RCMP discovered the photographs. These events resulted in an allegation that the Respondent had engaged in disgraceful conduct (Allegation), contrary to what was ss. 39(1) of the Code of Conduct. An Adjudication Board (Board) held a hearing at which the Appropriate Officer (Appellant) relied exclusively on a brief set of particulars and a short Agreed Statement of Facts. The Appellant made submissions on the broad issues of permitting children to handle firearms and mistreating Force property, while emphasizing that the Board had to look at all the circumstances in making a decision. The Board held that the Allegation was not established. It found that the Respondent’s evidence was persuasive, that no authority or rule was violated and that an objective standard of conduct derived from prior relevant decisions was not breached.

The ERC addressed the two arguments made by the Appellant on appeal. First, the Appellant asserted that the only question before the Board should have been whether or not the Respondent’s use of RCMP equipment was for employment-related purposes or was otherwise authorized. The ERC disagreed. There was no suggestion in the particulars or in the Agreed Statement of Facts that the focus of the Allegation was whether the Respondent’s conduct was work-related or otherwise authorized. The Appellant presented no evidence or authority at the hearing that the Board’s assessment of the Allegation should have been limited to this narrow question. In fact, the Appellant did not speak to this question at all during the hearing, focusing instead on much broader issues. The case relied on by the Appellant in support of this argument was not helpful.

Second, the Appellant argued that the Board improperly assessed the information and evidence when applying the test for discreditable conduct. The ERC disagreed. The Appropriate Officer Representative (AOR) did not identify for the Board the disgraceful element(s) of the Respondent’s conduct. Absent any evidence to this effect or consistent theory of the case from the AOR and, in light of the Board’s decision as a whole, the fact that the Board did not set out the reasonable person test during its analysis of the impugned conduct was neither determinative to its decision nor an error of law. The Board gave substantive reasons for its decision against an objective standard and clearly relied upon prior cases and the evidence offered by witnesses as establishing an objective norm within and among RCMP members. The Board’s analysis accorded with the reference in the reasonable person test to knowledge of policing in general and of the RCMP in particular. A finding that a reasonable person, having reviewed the evidence presented, would not conclude that the Respondent’s conduct was disgraceful can reasonably be implied from the Board’s decision.

The ERC recommended to the Commissioner of the RCMP that he dismiss the appeal and confirm the Board’s decision pursuant to paragraph 45.16(2)(a) of the RCMP Act.

The Commissioner’s decision, as summarized by his office, is as follows:

The Appellant appealed a decision of the Adjudication Board that an allegation of disgraceful conduct against the Respondent was not established. The Respondent, while off-duty and at his residence, permitted two children to handle RCMP-issued pistols. The Respondent took photographs of the children posing with the pistols with his RCMP-issued Blackberry. An agreed statement of facts was submitted to the Board but the Respondent denied that his conduct was disgraceful.

The Board found that the allegation was not established based on the evidence made available to them. The Board determined that the Appellant had not identified how the particulars of the allegation or the agreed statement of facts constituted disgraceful conduct. Absent a breach of statute, regulation, policy or established professional courtesy, the Board reviewed previous RCMP discipline cases involving the mishandling of firearms and the misuse of RCMP property to objectively measure the Respondent’s conduct. The Board found that there was no basis upon which to find the Respondent’s conduct disgraceful.

The Appellant argued that the Board erred in its interpretation and application of the test for disgraceful conduct. The Appellant maintained that the only question that should have been before the Board was whether or not the Respondent’s use of the RCMP-issued equipment was for employment-related purposes or otherwise authorized. The Appellant also contended that the Board improperly assessed the information and evidence before it in applying the test for disgraceful conduct.

The Commissioner accepted the ERC’s recommendation and found that the Board made no manifest or determinative error in its decision. The Board conducted an objective assessment of the facts within the legal requirements of section 39 of the Code of Conduct. The appeal is dismissed.